PUERTO RICO NATIONAL GUARD PUERTO RICO AIR NATIONAL GUARD SAN JUAN, PUERTO RICO and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3936

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3936
Charging Party

Case No. AT-CA-70505

Richard Jones, Esquire
For the General Counsel
David Carrion Baralt, Esquire
For the Respondent
Pedro Romero
For the Charging Party
Before: SAMUEL A. CHAITOVITZ
Chief Administrative Law Judge

DECISION

Statement of the Case

This case arose under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the United State Code,
5 U.S.C. § 7101, et seq. (the Statute).

Based upon an unfair labor practice charge filed by the
Charging Party, the American Federation of Government Employees,
Local 3936 (AFGE Local 3936/Union), a Complaint and Notice of
Hearing was issued on behalf of the General Counsel (GC) of the
Federal Labor Relations Authority (FLRA/Authority) by the Regional
Director of the Atlanta Regional Office of the FLRA. The complaint
alleges that the Puerto Rico National Guard (PRNG/Respondent),
Puerto Rico Air National Guard (PRANG), violated section 7116(a)(1)
and (5) of the Statute by repudiating a memorandum of understanding
(MOU) which provided for a compressed work schedule (CWS) for
bargaining unit employees assigned to Muñiz Air National Guard
Base. Respondent filed an answer, which was amended at the hearing,
denying it had violated the Statute.

A hearing was held in Hato Rey, Puerto Rico, at which time
all parties were afforded a full opportunity to be represented, to
be heard, to examine and cross-examine witnesses, to introduce
evidence and to argue orally. PRNG and the GC of the FLRA filed
post-hearing briefs, which have been fully considered.

Based upon the entire record, including my observation of
the witnesses, I make the following findings of fact, conclusions,
and recommendations.

Findings of Fact

A. Background

AFGE Local 3936 is the certified exclusive collective
bargaining representative for a unit of employees of PRANG. The
bargaining unit includes the maintenance personnel at Muñiz Air
Force Base.

Although other National Guard facilities have had
Alternative Work Schedules (AWS) for many years, there has never
been such a schedule at Muñiz Air Force Base. For a number of years
AFGE Local 3936 has been attempting to get the PRNG to agree to
some form of AWS. In 1989, AFGE Local 3936 surveyed employees and
managers and discovered near unanimous support for the AWS concept.
On October 8, 1991, AFGE Local 3936 and the PRNG entered into a
"Side Bar Agreement Regarding Compressed Time," where the parties
essentially agreed to postpone negotiations until completion of
conversion to a new type of aircraft:

The parties understand that due to the conversion of
equipment it would be disadvantageous

to enter into a Compressed Time Schedule at this
time.

The parties agree to reconvene to negotiate on
Compressed Time Schedule upon completion

of conversion.

This conversion is expected to be completed within the
next three years.

AFGE Local 3936 agreed to delay negotiations because its
leadership at that time was "a little bit insecure about the new
equipment."(1)

B. AFGE Local 3936 Requests to Negotiate for a CWS

About a year and a half later, then-Union President Luis
Marquez requested to begin negotiations as contemplated by the Side
Bar Agreement. PRNG's then-Chief Negotiator, Vicente L. Linera,
replied by stating that the conversion referenced in the Side Bar
Agreement was not completed, but that bargaining would resume as
soon as the conversion was completed. Linera stated, "I consider
the Side Bar Agreement valid and will reconvene as soon as the
conversion is considered completed."

As set forth in Respondent's Drill Bulletin 93-7, dated July
9, 1993, the "official conversion period" ended June 30, 1993.
Respondent, however, refused to negotiate. Respondent put this
refusal in writing, when the Adjutant General, Emilio Diaz-Colon,
declared, in part:

National Guard Bureau delegates the authority, under
32 USC 709, to establish

work schedules of less than five (5) or more than
six (6) workdays to the Adjutant

General.

2. In accordance with 32 USC 709(9)(2) and the
authority delegated, I have decided

not to exercise the authority to implement a
compressed or alternate work schedule at

the Puerto Rico Army and Air National Guard.

3. My decision has no impact in our collective labor
agreement negotiations, since

compressed or alternate work schedule will not be
implemented in our organization.

AFGE Local 3936 then filed an unfair labor practice charge,
alleging that the Adjutant General's announcement (that there would
be no CWS or AWS) repudiated the 1991 Side Bar Agreement to
negotiate such a schedule. Respondent settled that case, agreeing
to post a Notice which provided, in part:

WE WILL NOTIFY Pedro Romero, President, AFGE, Local
3936, not later

than November 30, 1994, to commence negotiations on
the compressed work

schedule.

WE WILL COMMENCE negotiations not later than
December 12, 1994, or

notify Pedro Romero and mutually agree to a date and
time.

WE WILL NOT, in any like or related manner,
interfere with, restrain, or coerce

our employees in the exercise of their rights
protected by the Federal Service Labor-

Management Relations Statute.

WE WILL ABIDE by the Side Bar Agreement Regarding
Compressed Time, dated

October 8, 1991.

C. AFGE Local 3936 Again Requests to Negotiate a CWS

Shortly thereafter AFGE Local 3936 President Pedro
Romero(2) submitted, pursuant to a
mediation meeting, substantive proposals for the CWS. Respondent
refused to negotiate. Rather, Respondent responded by stating that
the Union's proposal would have an adverse impact on the agency;
was not practical; was detrimental to the normal operations; and
would directly affect the agency's mission. Thus, Respondent
proposed to simply keep the hours of work "as it is at present."
Respondent did not elaborate further or give any specifics as to
how or why a CWS would be harmful. Instead, according to Union
President Romero's uncontradicted testimony, Respondent simply told
the Union that "the general didn't like it."

AFGE Local 3936 filed another unfair labor practice charge.
The parties again entered into a settlement agreement on March 6,
1996, to resolve that charge. There, they agreed to seek the
services of a mediator not later than March 31, 1996, and "[s]hould
the efforts of the mediator be unsuccessful, either the Agency, the
Union, or both may seek the services of the Federal Services
Impasses Panel (FSIP)."

D. The MOU

Thereafter, the parties exchanged proposals, leading up to a
meeting on October 31, 1996, with the assistance of a Federal
mediator. The parties then reached an agreement. The MOU provided
as follows:

AFGE Local 3936 and the Puerto Rico National Guard
(also referred to as the Parties)

agree to the following 4 day, 10 hours schedule for
the Muñiz ANGB.

1. Management will prepare a schedule so that
employees will have Mondays or Fridays

off, working 10 hours for 4 days per week (two
shifts/day), subject to change based on

mission requirements.

2. This will be in effect from the end of March,
1997 thru September 1997.

3. An evaluation of this project will be made by the
parties at the end of the six month

period. Final determination will be made by
TAG-PR.

4. Management will distribute to all sections
monthly reports of flying activities and any

other information related to this project.

5. Lunch periods will be extended to 45 minutes in
lieu of an additional 15 minutes break

period as stated in article XI of the Negotiated
Agreement.

6. In the work areas where the number of employees
do not allow to implement a 4 x 10

schedule, a regular 5 x 8 will continue to be in
effect. The Base Air Commander will

determine which areas will be affected.

7. The parties will keep in constant communication
in order to fine tune the process

as it evolves.

8. This agreement is effective upon the signature of
the parties.

9. The Adjutant General of Puerto Rico retains the
rights to terminate this conditions

[sic] at any given time when in his judgement the
same has become an obstacle for the

accomplishment of the military mission.

10. The trial period will be evaluated and the
effectiveness of this new working

conditions will be determined based on the following
indicators:

a. Average sorties/hours per month. Baseline
will be established using

a one year period.

b. Absenteeism-annual and sick leave
utilization. Baseline will be the

leave used during the last year.

c. Utilities expenses-electricity/water.
Baseline will be the bills during

the last year.

d. Morale-A survey will be conducted prior
to the implementation and

at the end of the six month period.

e. Overtime/compensatory/night differential
time used. Baseline will be

the overtime, compensatory and night
differential used during the last

year.

f. Accidents/injuries/incidents-Baseline
will be the accident, injuries,

incidents during the last year.

The MOU sets forth no reason for delaying the implementation
five months from October 1996 to March 31, 1997. However, according
to the uncontradicted testimony of both Union negotiators, AFGE
National Representative Pedro Romero and AFGE Local 3936 President
Pedro Romero, the Union agreed to delay negotiations until
completion of an organizational readiness inspection (ORI)
scheduled for March 1997. There was absolutely no discussion or
consensus between the parties that passing the inspection was a
contingency for implementation or that keeping the same airplanes
was a contingency.(3)

The MOU attempted to accommodate all of Respondent's
concerns. In addition to the five-month delay discussed above, the
MOU provided that the CWS would be a six month experimental program
to be evaluated and analyzed at the end of the period by comparing
various factors to data based on the previous one-year period.
Moreover the MOU provided that the Adjutant General of the PRNG had
the right to terminate the experiment simply based on his own
judgment that it had "become an obstacle for the accomplishment of
the military mission."(4)

E. The MOU Is Not Implemented

The ORI was conducted in March 1997, and PRANG failed the
inspection.

On March 31, 1997, and thereafter, Respondent did not
implement the agreement. When Chief Negotiator AFGE National
Representative Romero inquired about the matter, he was told that
the general "just didn't like it." No other reason was given, nor
did Respondent present any testimony at the hearing to suggest that
the Union was given any other reason for refusing to implement the
MOU.

Respondent never gave the Union any reasons for its refusal
to implement the agreement other than that general did not like
it.(5)

As of the date of the hearing, well after the originally
scheduled September 1997 expiration of the experimental compressed
work schedule in the MOU, there still had been no change in
equipment, nor does anyone know when the contemplated change in
aircraft (to C-130s) will occur. Rather, PRNG's only witness
testified simply that nothing can be done until Respondent finds
out when the training for the new aircraft will begin. PRANG
officially learned it flunked the inspection in April 1997, after
the CWS should have already been implemented, although it had
already learned it had failed the first phase of the ORI.

Discussion and Conclusions of Law

A. The Statute

Section 7116(a)(1) and (5) of the Statute provides:

(a) For the purpose of this chapter it shall be an
unfair labor practice for an agency--

(1) to interfere with, restrain, or
coerce any employee in the exercise of any right under

this chapter;

* * * *

(5) to refuse to consult or negotiate in
good faith with a labor organization as required by

this chapter[.]

B. MOU Is A Binding Agreement

The Authority has held that, as a general rule, AWS/CWS are
conditions of employment negotiable under the Statute, subject only
to the Federal Employees Flexible and Compressed Work Schedules Act
of 1982, Pub. Law No. 97-221, 96 Stat. 227 (codified at 5 U.S.C. §§
6101 note, 6106, 6120-6133) (the Work Schedules Act). National
Treasury Employees Union, Chapter 24 and U.S. Department of the
Treasury, Internal Revenue Service, 50 FLRA 330, 332
(1995).

In National Guard Bureau and Adjutant General, State of
Pennsylvania, 35 FLRA 48 (1990)(National Guard Bureau),
the Authority recognized that an exception to the general rule
discussed above was created by section 709(g)(2) of the National
Guard Technicians Act. The Authority found that section 709(g)(2)
of the National Guard Technicians Act provides that notwithstanding
any other provisions of law, the Secretary may prescribe the hours
of duty for technicians and that the National Guard Bureau did not
have the duty to negotiate over a CWS. National Guard
Bureau, 35 FLRA at 54.(6) In
this regard the National Guard Technicians Act, although it
provides that the National Guard is not compelled to bargain about
AWS/CWS, does not, by its terms, forbid the National Guard from
bargaining about AWS/CWS, if it so chooses.

Thus, although PRNG could have lawfully declined to bargain
about the CWS, it did not. On the contrary, PRNG exercised its
discretion and chose to bargain with AFGE Local 3936 about a CWS,
reached an agreement and entered into the MOU providing for an
experimental CWS for a period of six months.

The GC of the FLRA argues that the CWS, since the Respondent
agreed to bargain about it and entered into the MOU, should be
treated as any other permissive subject of bargaining. I find this
argument to be persuasive and I note that Respondent does not take
issue with it.

The CWS is a "tour of duty" normally covered by section
7106(b)(1) of the Statute that can be negotiated at the election of
the agency, a so called permissive subject of bargaining. The Work
Schedules Act made the CWS fully negotiable, with the exception,
created by the National Guard Technicians Act, that the National
Guard does not have to bargain about the CWS. Thus, we are back
where we started and the CWS tour of duty was negotiable at the
election of PRNG.

Thus, although PRNG could have refused to bargain about a
CWS, PRNG chose to exercise its discretion and elected to bargain
with AFGE Local 3936 about the CWS and to enter into the MOU
providing for a CWS. In these circumstances I conclude that PRANG
is bound by the MOU and Respondent must honor it. See U.S.
Department of Commerce, Patent and Trademark Office, 53 FLRA
858, 873 (1997).

In concluding that Respondent is bound by the MOU concerning
the CWS, I note that Respondent has not argued that it was not
bound by the MOU concerning the CWS, or even that it was not
obliged to bargain about the CWS.

C. PRNG Was Not Permitted to Refuse to Implement the
MOU

Respondent argues that it was permitted to refuse to
implement the MOU for three reasons: (1) PRANG failed its ORI in
March 1997; (2) PRANG changed its commanding officer; and (3) an
impending change in the aircraft to be serviced.

Respondent argues that throughout the process of reaching
the MOU there was an unarticulated premise that PRANG was going to
successfully complete the ORI, and that after the ORI the same type
of aircraft would continue to be serviced and the operation would
remain unchanged. The PRANG failed the ORI, the Base Commander and
Chief of Maintenance resigned, and the type of aircraft assigned
was going to be changed from the F-16 to the C-130 by the end of
Fiscal Year 1998. Accordingly, Respondent argues, PRANG was
confronted with a whole set of circumstances that precluded the
implementation of the test CWS. Further, relying on section 6131(a)
of the Work Schedules Act, PRANG argues it was justified in
delaying implementation of the MOU until conditions are appropriate
and the level of service can be guaranteed so as to test the
efficiency of the CWS.

Two of the representatives of the Union that had negotiated
the MOU testified at the hearing that there were no reservations,
implied or explicit, limiting putting the MOU in effect. The three
reasons put forth by Respondent were not agreed upon or even
discussed. In fact, the only limitation was that the MOU was not to
go into effect until the end of March 1997, which, in fact, was to
be after the ORI was to be completed, which it in fact was. There
was no discussion that the ORI had to be passed. It seems obvious
to me that if the PRNG wanted the three issues precedent to the MOU
being implemented, they would have been discussed, negotiated and
agreed upon. The lone witness for Respondent was not present at,
nor did he participate in, the MOU negotiations. Rather, without
any support, he merely asserted that these limitations were somehow
unarticulated. He was unable to testify as to what had actually
occurred or what was said during the bargaining sessions.

I conclude that the record establishes no limitations were
placed on the implementation of the MOU by the negotiators.
Further, there is nothing in the language of the MOU that persuades
me that any such limitations were implied.

The MOU provides great leeway and freedom for the Base
Commander to determine which areas would be subject to the CWS and
further, that the Adjutant General of Puerto Rico retained the
right to terminate the CWS "when in his judgement the [CWS] has
become an obstacle for the accomplishment of the military mission."
In light of the foregoing provisions, I conclude that if the
parties had wanted to provide other limitations on implementing the
MOU, they would have done so explicitly.

Further, I reject any argument that the change in airplanes
assigned or in the commanding officers made it impossible to
implement the MOU at the end of March 1997. Although Respondent
states that these changes make the implementation of the MOU
impossible, it did not provide any evidence to support this, other
than the mere assertion. In this regard, I note that Respondent did
not notify the Union that PRANG would not implement the MOU or
provide any reasons for its failure to implement it. It merely
stated that the general did not like it. Further, by the time the
MOU would have expired by its own terms, there had been no change
in the airplanes assigned.

The record herein establishes that Respondent repudiated the
entire MOU and, by failing to put it into effect, it clearly and
patently breached the MOU. Respondent's total repudiation and
breach of the MOU went right to the heart of the agreement and the
relationship between AFGE Local 3936 and Respondent. Respondent's
breach and repudiation of the MOU violated section 7116(a)(1) and
(5) of the Statute. See Department of the Air Force, Warner
Robins Air Logistics Center, Robins Air Force Base, Georgia, 52
FLRA 225 (1996); Department of the Air Force, 375th Mission
Support Squadron, Scott Air Force Base, Illinois, 51 FLRA 858
(1996); and Department of Defense, Warner Robins Air Logistics
Center, Robins Air Force Base, Georgia, 40 FLRA 1211
(1991)(DOD).

D. Remedy

To adequately remedy the violation herein Respondent must be
required to implement the MOU and to extend its term for six months
from the date of implementation. See DOD, 40 FLRA at
1222-23. Further the Notice should be posted throughout the
facility, the Muñiz Air National Guard Base, where the MOU is to
apply, and should be signed by the PRNG Adjutant General, who, the
MOU provides, can terminate theCWS experiment.

Having concluded that Respondent violated section 7116(a)(1)
and (5) of the Statute when it failed to implement the MOU, I
recommend the Authority adopt the following Order:

ORDER

Pursuant to section 2423.41 of the Authority's Rules and
Regulations and section 7118 of the Federal Service
Labor-Management Relations Statute, the Puerto Rico National Guard,
Puerto Rico Air National Guard, San Juan, Puerto Rico, shall:

1. Cease and desist from:

(a) Failing and refusing to honor the Memorandum of
Understanding (MOU) it negotiated with the American Federation of
Government Employees, Local 3936 (Union), the exclusive
representative of its employees, by failing to implement, on a 6
month trial basis, a 4-10 compressed work schedule whereby its
employees will work 10 hours, 4 days a week with either Mondays or
Fridays off, as required by the MOU.

(b) In any like or related manner, interfering
with, restraining, or coercing its employees in the exercise of
their rights assured by the Federal Service Labor-Management
Relations Statute (the Statute).

2. Take the following affirmative action in order to effectuate
the purposes and policies of the Statute:

(a) Upon request by the Union, implement the MOU
and prepare a schedule for the Muñiz Air National Guard Base so
that employees will have Mondays or Fridays off, working 10 hours,
4 days per week (2 shifts/day), subject to change based on mission
requirements, as required by the MOU, and maintain the terms of the
MOU for 6 months from the date of implementation.

(b) Post at its Muñiz Air Force Base facilities
where employees in the bargaining unit are located copies of the
attached Notice on forms to be furnished by the Federal Labor
Relations Authority. Upon receipt of such forms, they shall be
signed by the Adjutant General, Puerto Rico National Guard, and
shall be posted and maintained for 60 consecutive days thereafter
in conspicuous places, including all bulletin boards and other
places where notices to employees are customarily posted.
Reasonable steps shall be taken to ensure that such Notices are not
altered, defaced, or covered by any other material.

(c) Pursuant to section 2423.41 of the Authority's
Rules and Regulations, notify the Regional Director, Atlanta,
Georgia Regional Office, Federal Labor Relations Authority, in
writing, within 30 days from the date of this Order, as to what
steps have been taken to comply.

Issued, Washington, DC, April 6, 1998.

_____________________________

SAMUEL A. CHAITOVITZ

Chief Administrative Law Judge

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the Puerto
Rico National Guard, Puerto Rico Air National Guard, San Juan,
Puerto Rico, violated the Federal Service Labor-Management
Relations Statute and has ordered us to post and abide by this
Notice.

WE WILL NOT, fail and refuse to honor the Memorandum of
Understanding we negotiated and agreed to on October 31, 1996, with
the American Federation of Government Employees, Local 3936, the
exclusive representative of our employees by failing and refusing
to implement a 4-10 compressed work schedule for employees at Muñiz
Air Force Base as required by the agreement.

WE WILL NOT, in any like or related manner, interfere
with, restrain, or coerce our employees in the exercise of their
rights assured by the Federal Service Labor-Management Relations
Statute.

WE WILL, upon request by the American Federation of
Government Employees, Local 3936, implement the Memorandum of
Understanding and prepare a schedule for the Muñiz Air National
Guard Base so that employees will have Mondays or Fridays off,
working 10 hours, 4 days per week (2 shifts/day), subject to change
based on mission requirements as required by the Memorandum of
Understanding, and maintain its terms for 6 months from the date of
implementation.

_________________________________

( Activity)

Dated:__________________By:______________________________

(Signature)
(Title)

This Notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by
any other material.

If employees have any questions concerning this Notice or
compliance with any of its provisions, they may communicate
directly with the Regional Director, Atlanta Regional Office,
Federal Labor Relations Authority, whose address is: Marquis Two
Tower, 285 Peachtree Center Avenue, Suite 701, Atlanta, GA 30303,
and whose telephone number is: (404) 331-5212.

1. The new "equipment" refers to a
different type of aircraft. Prior to that time, the maintenance
employees worked on A-7Ds, but switched during the 1991 time period
to F-16s.

2. It must be noted that there are
two persons named Pedro Romero in this case. One is the AFGE Local
3936 President and the other is the AFGE National
Representative.

3. Although Respondent's witness,
Lt. Col. Angel Siberon, voiced his opinion at the hearing that it
would not be proper to implement the MOU "right now" because of
various future uncertainties in the workplace, he was not involved
in the negotiation of the MOU or privy to any of the discussions or
conversations leading up to the agreement. Respondent produced none
of its negotiators to testify or contradict the testimony of the
Union negotiators that no side agreements modifying or changing the
MOU were reached.

4. The parties negotiated their own
procedures in the event Respondent wished to terminate the
compressed work